{"id":"full_commission-G506221-2024-05-21","awcc_number":"G506221","decision_date":"2024-05-21","opinion_type":"full_commission","claimant_name":"Roger Grubbs","employer_name":"Southern Personnel Management, Inc./ Cabinet Shop, Inc","title":"GRUBBS VS. SOUTHERN PERSONNEL MANAGEMENT, INC./ CABINET SHOP, INC. AWCC# G506221 MAY 21, 2024","outcome":"reversed","outcome_keywords":["reversed:1","granted:1"],"injury_keywords":["cervical","strain","thoracic","lumbar","neck","back","ankle","hip"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Grubbs_Roger_G506221_20240521.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Grubbs_Roger_G506221_20240521.pdf","text_length":57270,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G506221 \n \nROGER GRUBBS, \nEMPLOYEE \n \nCLAIMANT \nSOUTHERN PERSONNEL MANAGEMENT, INC./ \nCABINET SHOP, INC., EMPLOYER \n \nRESPONDENT NO. 1 \nAMTRUST NORTH AMERICA, \nINSURANCE CARRIER/TPA \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND \n \nRESPONDENT NO. 1 \n \n \nRESPONDENT NO. 2 \n \n      \nOPINION FILED MAY 21, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, JR., \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE WILLIAM C. FRYE, \nAttorney at Law, North Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE DAVID L. PAKE, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed.  \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nNovember 29, 2023.  The administrative law judge found that the claimant \nproved he was entitled to additional medical treatment and temporary total \ndisability benefits.  After reviewing the entire record de novo, the Full \nCommission finds that the claimant did not prove surgery recommended by \nDr. Blankenship in accordance with Ark. Code Ann. §11-9-508(a)(Repl. \n\nGRUBBS - G506221  2\n  \n \n \n2012).  We find that the claimant did not prove he was entitled to an award \nof temporary total disability benefits.     \nI.  HISTORY \n Roger Grubbs, now age 70, testified that he began performing \ncabinetry work for the respondent-employer in 1975.  Mr. Grubbs described \nthe physical nature of his work for the respondents:  “It involved lifting heavy \ncabinets, lifting heavy sheets of material, laying them on the saw to cut \nthem up, fabrication, crawling in and out of cabinets, moving heavy stuff, \ndelivery, installation.”       \n It was stipulated that the claimant sustained a compensable injury on \nMarch 4, 2013.  The record indicates that the claimant was involved in a \nmotor vehicle accident on that date.  The claimant testified, “I was at a – \nwaiting at a red light waiting for it to turn green and somebody drove into \nme from behind.”  Dr. Terry Clark diagnosed “1.  Cervical strain” and “2.  \nThoracic strain.”  Dr. Clark treated the claimant conservatively and returned \nhim to restricted work duty.  The claimant participated in a Functional \nCapacity Evaluation on October 3, 2013:  “The results of this evaluation \nindicate that a reliable effort was put forth, with 51 of 51 consistency \nmeasures within expected limits....Mr. Grubbs demonstrated the ability to \nperform work in the MEDIUM classification of work[.]”  Dr. Christopher \n\nGRUBBS - G506221  3\n  \n \n \nCovington stated on June 9, 2015, “He is at maximum medical \nimprovement from a neurosurgical standpoint.”         \nThe parties stipulated that the employment relationship existed on \nAugust 7, 2015.  The claimant testified on direct examination:  \n Q.  Did you have a second accident on August 7 of 2015? \n A.  Yes.   \n Q.  Tell us how that accident happened. \nA.  Light turned green so I proceeded through the intersection.  \nSomeone on my right ran the red light and collided with me \nfrom the side.... \nQ.  Have you done any work at the cabinet shop since that \naccident? \nA.  About three hours.   \nQ.  How did the August 7, 2015, accident affect your \ncondition? \nA.  It made it much worse.   \n \n The parties stipulated that the respondents “initially accepted this \nclaim as compensable and paid some temporary total disability benefits.”   \nAccording to the record, Dr. Gregory M. Loyd examined the claimant \non August 12, 2015: \nAt the request of and authorization by Southern Personnel \nManagement, we are seeing Mr. Roger Grubbs.  The patient \npresents today for evaluation of injuries to his spine that \noccurred in an MVA on 08-07-15.  He apparently was in a \nsmall truck (I can’t recall whether this was a company vehicle \nor not) when he was struck in the passenger side rear \nfender/wheel area when another vehicle ran a red light.  He \napparently was wearing a seat belt but was jostled around in \nhis seat.... \n \n Dr. Loyd assessed “Acute exacerbation of degenerative arthritis of \nthe cervical, thoracic and lumbar spines related to recent MVA....My overall \n\nGRUBBS - G506221  4\n  \n \n \ngeneral impression is that it is likely that this patient’s course will be \nsomewhat prolonged just based on his previous protracted course of care \nfrom first MVA.”    \n Dr. Steven L. Cathey corresponded with the respondent-carrier on \nAugust 31, 2015: \nThank you for the medical records you provided, as well as \nyour introductory letter regarding Mr. Roger Grubbs.  As you \nrecall, he was seen today for the purpose of an independent \nmedical evaluation.  The patient presents with chronic neck, \nthoracic and lower back pain that actually began after an \noriginal occupational injury sustained on March 4, 2013.  \nAccording to the patient, he was working in a cabinet shop \nwhen he was driving a “light truck” that was rear-ended at a \nfour-way intersection.... \nSince the original March 2013 injury the patient has worked a \nlimited amount at the cabinet manufacturing facility where he \nis employed.  He has not worked at all since the most recent \nmotor vehicle accident of August 7, 2015.  He was given \nsome muscle relaxants and meloxicam by a primary care \nphysician in Ft. Smith and also received a parenteral steroid \ninjection.... \nMr. Jackson, in my opinion, the patient’s current diagnosis is \ndegenerative disc disease affecting the cervical, thoracic and \nlumbar spine.  He probably did suffer a thoracic strain \nsuperimposed on these pre-existing conditions.  \nUnfortunately, he is not a candidate for spinal surgery or other \nneurosurgical intervention.  This opinion is, therefore, \nconsistent with the one he received from Dr. Covington earlier \nthis year.  I do not see this problem getting any better long-\nterm. \nThe patient is really not interested in physical therapy for \ntreatment of the thoracic strain.  Moreover, I believe since he \nis almost a month out from this event he is at maximal medical \nimprovement and there is really no indication for additional \ntreatment as it relates to this particular motor vehicle accident.  \nHe could certainly follow-up with Dr. Covington’s \n\nGRUBBS - G506221  5\n  \n \n \nrecommendation and pursue long-term pain management in \nTulsa for those symptoms related to the March 4, 2013, MVA.   \nAs it relates to this most recent motor vehicle accident there is \nno impairment rating in the absence of objective findings \neither clinically or radiographically.   \nAs far as his job is concerned, I believe he can either return to \nwork at regular duty status, find another line of employment \nthat is not so strenuous or file for long-term disability benefits \nthrough Social Security.... \n \n The claimant began treating with Dr. James B. Blankenship on \nNovember 14, 2016:  “The patient’s chief complaint is lower back pain.  He \nhas multifactorial injuries with a motor vehicle accident in March of 2013, \nwhich he never really got better from but then he was also in an MVA in \nAugust of 2015....The patient has done multiple different injections and \nphysical therapy.”  Dr. Blankenship’s impression was “1.  Low back pain,” \n“2.  Fibromyalgia,” “3.  Pain in thoracic spine,” and “4.  Cervicalgia.”   \n An administrative law judge filed an opinion on January 4, 2017.  The \nadministrative law judge found that the claimant proved he was “entitled to \nthe payment of a 5% permanent impairment rating as assessed by Dr. \nHolder in October of 2013.” \nThe claimant followed up with Dr. Blankenship on February 9, 2017.  \nDr. Blankenship stated that new diagnostic testing showed abnormalities in \nthe claimant’s lumbosacral spine, and Dr. Blankenship planned, “I have told \nhim the best thing for us to do is to try another aggressive, active, \nconservative treatment plan.  I have recommended we get him in to see Dr. \n\nGRUBBS - G506221  6\n  \n \n \nDavid Cannon for evaluation and possible ESI.  I have recommended we \nget him started with an aggressive, active physical therapy course with the \nfolks at Summit.”   \n A pre-hearing order was filed on September 13, 2017.  According to \nthe pre-hearing order, the claimant contended that he was “entitled to \ntemporary total disability benefits from February 9, 2017 until a date yet to \nbe determined.  Claimant contends he is entitled to additional treatment by \nor at the direction of Dr. Blankenship, including but not limited to physical \ntherapy and pain management treatment.  Claimant contends that his \nattorney is entitled to an appropriate attorney’s fee.”   \nThe parties stipulated that the respondents “now controverted the \nclaim.”  The respondents contended that the claimant “has not produced \nobjective, measurable findings of a compensable injury pursuant to A.C.A. \n§11-9-102.  Claimant has had chronic back problems in the cervical, \nthoracic, and lumbar areas.  Claimant was involved in a motor vehicle \naccident on March 4, 2013.  Claimant underwent MRIs of all three areas of \nthe back that showed protrusions and degenerative changes.  The claimant \nunderwent a functional capacity evaluation in October 2013 and was \nrestricted to medium duty and was only able to work four hours per day.  He \nwas taking Lyrica and described pain in the neck, mid-back, low back and \ndown the legs.  He also had moderate spasms in his back due to the \n\nGRUBBS - G506221  7\n  \n \n \naccident.  Claimant then went to Dr. Covington in 2014 complaining of back \npain.  Dr. Covington noted a long history of chronic mid-back pain.  The \nclaimant had lost 40% of his work time.  He underwent [an] MRI that \nshowed osteophytes and bulges at L3-4, L4-5, and L5-S1.  He also had a \ndisc protrusion at L4-5.  Claimant returned to the doctor in June of 2015 \nwith the same problems, continuing to have radiculopathy down the leg and \nmoderate spasms.  He was seen by the doctor for those conditions the day \nbefore the incident of August 7, 2015.  He was followed for degenerative \narthritis.  It is the respondents’ position that there are no new objective \nfindings related to the second motor vehicle accident.”   \nThe parties agreed to litigate the following issues: \n1.  Compensability of injury to claimant’s cervical, thoracic, \nand lumbar spine on August 7, 2015. \n2.  Temporary total disability benefits from February 9, 2017 \nthrough a date yet to be determined. \n3.  Medical benefits as directed by Dr. Blankenship. \n4.  Attorney’s fee.   \n \n A hearing was held on January 29, 2018.  At that time, the claimant \ncontended that he was entitled to temporary total disability benefits \nbeginning September 30, 2015 through a date yet to be determined.  The \nclaimant reserved the issue of his entitlement to permanent disability \nbenefits.  An administrative law judge filed an opinion on February 28, \n2018.  The administrative law judge found that the claimant proved he \nsustained a compensable injury on August 7, 2015.  The administrative law \n\nGRUBBS - G506221  8\n  \n \n \njudge found that the claimant proved he was “entitled to additional medical \ntreatment as recommended by Dr. Blankenship.”  The administrative law \njudge awarded temporary total disability benefits.  The respondents \nappealed to the Full Commission and the claimant cross-appealed. \n The Full Commission filed an opinion on October 1, 2018.  The Full \nCommission found that the claimant proved he sustained a compensable \ninjury to his neck and back on August 7, 2015.  The Full Commission found \nthat “the claimant proved Dr. Blankenship’s current treatment \nrecommendations were reasonably necessary in connection with the \nAugust 7, 2015 compensable injury to the claimant’s neck and back.”  The \nFull Commission found, “the claimant proved he was entitled to \nconservative medical treatment as recommended by Dr. Blankenship, said \ntreatment to be provided by the respondents Amtrust North America.  The \nFull Commission finds that the claimant reached the end of the healing \nperiod for his August 7, 2015 compensable injury no later than August 31, \n2015.  The claimant did not prove he was entitled to temporary total \ndisability benefits beginning September 30, 2015 or any time thereafter.” \n There was no appeal of the Full Commission’s opinion filed October \n1, 2018.          \n A pre-hearing order was filed on November 27, 2018.  The claimant \ncontended that, as a result of the March 4, 2013 compensable injury, he \n\nGRUBBS - G506221  9\n  \n \n \nhad sustained wage-loss disability in addition to his impairment rating.  After \na hearing, an administrative law judge filed an opinion on February 13, \n2019.  The administrative law judge found that the claimant had sustained \nwage loss “in an amount equal to a 15% impairment and is in addition to the \n5% assigned for the anatomical impairment rating to the body as a whole.” \n The claimant followed up with Dr. Blankenship on April 4, 2019:  “Mr. \nGrubbs first of all only got one visit approved for physical therapy.  I told him \nthis is a joke....I have recommended that we get him back in to see Dr. \nCannon to inject the upper area where he is hurting....I have also \nrecommended that he get into a comprehensive and active therapeutic \nprogram in Van Buren like we recommended.  If this is not done, I will not \nbe able to see the gentleman.”   \n On April 9, 2020, Dr. Blankenship performed an arthrodesis, disc \nresection, and hemilaminotomies.  The pre- and post-operative diagnosis \nwas “1.  L4-L5 and L5-S1 disc herniations.”  Dr. Blankenship noted on April \n23, 2020, “Overall he is pleased with his surgical outcome so far.”  Dr. \nBlankenship reported on July 16, 2020, “He states his pain he is having \nnow in his low back is a different type of pain.”  The claimant testified that \nhis condition improved following surgery by Dr. Blankenship.   \n Dr. Blankenship reported on October 22, 2020: \nThe patient is in today for follow up from his lumbar fusion.  \nHe is now six months post surgery.  He is doing great with \n\nGRUBBS - G506221  10\n  \n \n \ncomplete resolution of his preoperative pain.  He still has \nsome low back pain mostly midline.  He rates this only about \n20% toward the worst pain imaginable.... \nMr. Grubbs returns to the office today six months postop from \nhis ALIF.  He is doing well and states that he has a marked \nreduction in his preoperative pain.  He has noticed that he is \nstill more prone to flare ups and I told him that is just part of \nthe healing process.  I do think he is at MMI from the \nstandpoint of his surgery.  We have him on no current \nmedications.  The patient is 67 and I have advised him that he \ncannot return to work at what he was doing pre-surgically.  He \nwould have permanent restrictions on him but I told him I \nwould really recommend that he retire.... \n \n Dr. Blankenship assigned the claimant a 12% whole-body \nimpairment rating.  The parties stipulated, “Respondent #1 has accepted \nand is paying the 12% permanent impairment rating to the body as a \nwhole.”  The parties stipulated that the claimant “reached maximum medical \nimprovement on October 22, 2020.” \n The claimant participated in a Functional Capacity Evaluation on \nNovember 11, 2020:  “The results of this evaluation indicate that a reliable \neffort was put forth, with 52 of 52 consistency measures within expected \nlimits....Mr. Grubbs completed functional testing on this date with reliable \nresults.  Overall, Mr. Grubbs demonstrated the ability to perform work in the \nLIGHT classification of work[.]”     \nA pre-hearing order was filed on March 17, 2021.  According to the \npre-hearing order, the claimant contended that he “has sustained \npermanent loss of earning capacity greatly in excess of 12%.”  The \n\nGRUBBS - G506221  11\n  \n \n \nrespondents contended that the claimant “sustained a lumbar injury when \nhe was initially injured on March 4, 2013.  He underwent [an] FCE which \nfound that he could no longer work full time and was restricted to no more \nthan 4-hour work days.  Claimant was working part-time when he was \ninjured on August 7, 2015.  Due to the March 2013 back injury, claimant \nwas assigned a 5% rating to the body as a whole and a 15% wage loss \ndisability.  On August 7, 2015, claimant sustained a compensable injury to \nhis cervical, thoracic and lumbar spine.  He was awarded temporary total \ndisability and medical treatment.  Claimant ultimately had a lumbar fusion \nand was assigned a 12% rating, which respondent #1 accepted and is \ncurrently paying.  A new FCE was done that indicated claimant could return \nto work in the light category.  Respondent #1 has provided vocational \nrehabilitation with Heather Taylor which is ongoing at this time.  \nRespondent No. 1 contends the claimant has sustained no additional wage \nloss disability above the prior 15% he was awarded.” \nThe parties agreed to litigate the following issues: \n 1.  Extent of claimant’s wage loss disability. \n 2.  Attorney’s fee.   \n \n Dr. R. David Cannon performed injection treatment on April 19, \n2021.  Dr. Blankenship reported on May 6, 2021, “He had some trigger \npoint injections with Dr. Cannon that afforded him about two weeks of 50% \nrelief....He has done 12 visits of physical therapy in Alma and this does \n\nGRUBBS - G506221  12\n  \n \n \nseem to help with his pain.  His greatest pain is mid back pain.”  Dr. \nBlankenship recommended additional treatment with Dr. Cannon.   \n After a hearing, an administrative law judge filed an opinion on June \n10, 2021.  The administrative law judge found, \"2.  Claimant has met his \nburden of proving by a preponderance of the evidence that he is entitled to \npermanent partial disability benefits in an amount equal to 30% to the body \nas a whole as a result of his August 7, 2015 compensable injury.” \n The parties have stipulated, “The prior opinions in this matter are \nfinal.” \n The claimant treated with Dr. Cannon on August 2, 2021.  Dr. \nBlankenship noted on August 19, 2021, “He got his SI joint injection.  He \nstates he got 70% relief and still has relief.  He rates his pain anywhere \nfrom 20 to 40% toward the worst pain imaginable.  He is still having some \nlow back pain but overall he states his pain is somewhat less intense.”   \n Dr. Blankenship reported on September 2, 2021: \nThe patient is in today for follow up.  He states that his left low \nback and left buttock pain has gotten significantly worse over \nthe last couple of weeks and he would like to discuss SI joint \nfusion.  He rates his pain now about 80% toward the worst \npain imaginable.... \nI have offered him left SI joint arthrodesis.  After going over \nthe risks and benefits, he wants to proceed on with surgery.  \nNot that there is any question about it, his need for SI joint \narthrodesis is directly related because of his lumbar \nstabilization.  His lumbar stabilization was needed because of \nhis work-related injury.  Therefore it is directly related to his \nwork-related injury.   \n\nGRUBBS - G506221  13\n  \n \n \n \n Dr. Frank J. Tomecek provided an INDEPENDENT MEDICAL \nEXAMINATION on December 1, 2021: \nThis is a pleasant 68-year-old male who on or about August 7, \n2015, while driving a personal vehicle to a job as a cabinet \nbuilder and installer was involved in a motor vehicle accident \nwhen another car ran a stoplight....He has not worked since \nthis accident.  In April of 2020, he underwent an anterior \nlumbar interbody fusion at L4-5 and L5-S1 with posterior \ninstrumentation by Dr. Blankenship.  He states that his \nsurgery relieved a lot of his symptoms.  Currently, he has pain \nin his left buttock and left leg.  He states that when he bends \nover, his pain can be sharp and stabbing.  He feels weak in \nhis bilateral legs, left greater than right.  His left foot and ankle \ngo numb....He has had a few sacroiliac injections, which \nhelped his radicular pain.  He has not had physical therapy \nsince May of 2021, and he feels that this helped him.... \nI have been asked by Exam Works Incorporated if the \npatient’s current treatment is reasonable and necessary.  I \nfeel that the sacroiliac joint injection he has had is reasonable \nand was necessary.  I also feel that the physical therapy he \nhad after surgery is reasonable.  However, I would \nrecommend more physical therapy and at least one more \nsacroiliac joint injection before committing him to another \nmajor operation.   \nIn regard to causation of his current injury, I don’t believe we \nhave definitively established a diagnosis yet.  However, if the \npatient does have left-sided sacroiliac joint pain and sacroiliitis \nas his primary diagnosis, I would feel that the work-related \ninjury is causally related.  The patient reportedly was \nauthorized to have an operation for disk injury at L4-5 and L5-\nS1, and the motor vehicle accident that has been described in \nour report was felt to be the major cause leading to this \nsurgery.  I do not believe there was a direct injury to the \nsacroiliac joint in the motor vehicle accident, but it is not an \nuncommon finding in patients who have had a lumbar fusion \nto develop sacroiliac joint pain due to the increased stress on \nthe sacroiliac joint from a lumbar fusion.  Therefore, if the \npatient does have a final diagnosis of sacroiliitis on the left or \nsacroiliac joint pain, at least indirectly, this diagnosis would be \n\nGRUBBS - G506221  14\n  \n \n \nsecondary to surgery that he had that was related and directly \ncaused by the accident.   \nThe patient has been responding to his current treatment.  He \nhas improved with physical therapy and injections.  \nUnfortunately, he did not get significant improvement with his \nlumbar fusion.  He has had persistent disabling low back pain \nand remains on Celebrex and Tylenol, which do not control \nhis pain enough for him to return to normal function.  Again, I \nfeel further diagnostic testing is necessary, as I have \npreviously described.  I would not recommend any additional \nprescription medications until we have finalized his diagnosis.  \nIf the myelogram CT scan shows that he has a solid fusion \nand no residual neurologic impingement from hardware, \npseudoarthrosis, or adjacent level disk herniation, then I \nwould recommend further physical therapy on his back and \nsacroiliac joint and a second left-sided sacroiliac joint \ninjection.   \nI do not believe the patient has significant co-morbidities or \nprior injuries or pre-existing conditions that have impacted his \ncurrent injury or his current level of function.  The patient does \nnot appear to be displaying any Waddell’s signs, and I do not \nfeel there are significant psychological diagnoses or \npsychological overlay that is contributing to the patient’s \ncomplaint or objective examination findings.... \nAll of my opinions are based on a reasonable degree of \nmedical certainty. \n \n Dr. Tomecek reported on January 17, 2022: \nI saw Dr. Grubbs in follow-up today.  He underwent a \nmyelogram CT scan of the thoracic and lumbar spine.  I \nreviewed all of the films and results with him and his wife, who \naccompanied him.  The myelogram shows no evidence of \nmyelographic block in his lumbar or thoracic spine.  There is \nposterior fusion hardware in place from L4 to the sacrum on \nthe left side only.... \nThe patient had a thoracic myelogram CT scan, which shows \nanterior osteophytes at T7-8, T8-9, T9-10, T10-11, and T11-\n12....There is no cord compression or significant neural \nimpingement. \nHe complains about a lot of pain in his low back.  He \ncomplains of pain over the left sacroiliac joint.  He has had \n\nGRUBBS - G506221  15\n  \n \n \none sacroiliac joint injection, which gave him some relief.  He \ndoes not feel like he has a lot of strength in his legs, \nespecially on the left.  It is hard to go up stairs leading with his \nleft foot, but this has gotten better.  His legs feel heavy when \nhe walks.   \nIMPRESSION/PLAN:  This is a 68-year-old male who has \nundergone a unilateral left-sided L4 to the sacrum \ninstrumented fusion with anterior L4-5 and L5-S1 interbody \nfusion with cages.  He has unilateral hardware with pedicle \nscrews on the left, and again, the anterior cages are at L4-5 \nand L5-S1.  Myelogram CT scan done today suggests there is \nsome erosion around the anterior cages, at least at L5-S1, \nand some erosion around the sacral screws.  There is also \nautofusion of the left sacroiliac joint with a very large \nosteophyte coming off the sacroiliac joint on the left.  It \nappears to be autofused.  I do not agree with Dr. \nBlankenship’s recommendation.  I do not recommend a \nsacroiliac joint fusion on the left, because I believe the patient \nalready has an autofusion there.  He might benefit from a \nsacroiliac joint injection....I believe that his sacroiliac joint \ninjury most likely had a major cause from the accident that \noccurred on and around August 7, 2015.  This is a motor \nvehicle accident, and with the chronic changes around the \nsacroiliac joint, certainly the injury could have occurred over \nsix years ago related to this motor vehicle accident.  If the \nlarge osteophyte is causing some pressure on his inferior \nlumbosacral plexus and thus causing chronic pain, I do not \nfeel capable of doing a reoperation in his retroperitoneal area \nwhen he has had previous surgery with an anterior lumbar \ninterbody fusion.  It would be a very high-risk procedure for \nvascular or other organ injury in the face of previous surgery.  \nI have not done this type of pelvic approach to remove part of \nthe sacroiliac joint.  I would probably have to defer to a \nGeneral Surgeon and an Orthopedic Surgeon.  Again, \nhowever, I would not recommend a sacroiliac joint fusion on \nthe left, because I believe he already is autofused.... \nAll of my opinions are based on a reasonable degree of \nmedical certainty.   \n \n The claimant saw Dr. Blankenship on February 21, 2022: \n\nGRUBBS - G506221  16\n  \n \n \nThe patient is back in today after his IME that he had with Dr. \nTomecek.  He tells me that his SI joint pain is completely \nresolved.  He stretched his leg and when he did, his SI joint \npopped and is no longer hurting.  He did have a new \nmyelogram done for his thoracic and his low back pain but \nthat pain has not changed any.  He says it is something he \ncan live with.  He only rates that pain about 40 to 50% toward \nthe worst pain imaginable.... \nSince I saw Mr. Grubbs his SI joint pain is resolved.  He saw \nDr. Tomecek for an Independent medical evaluation.  I really \ndo not know why worker’s comp carriers continue to send \npatients of mine to Dr. Tomecek.  I have stated this multiple \ntimes.  I will state it again.  Dr. Tomecek testified against me \nin a malpractice lawsuit.  I reported him to the American \nAssociation of Neurological Surgeons where he was \nsanctioned for his testimony.  He obviously in no way can give \na true independent medical evaluation on one of my patients.  \nI would never see one of his patients as a second opinion no \nmatter how certain I would be that I could put all of that as a \nsecondary factor.  It is just inappropriate.  Concerning Mr. \nGrubb’s surgical intervention, I do think he is at surgical \nMMI.... \nI am going to plan on seeing him back in one year for followup \nsince he is going to keep his case open.  We will continue him \non his intermittent Celebrex.  He is going to call us if there are \nany changes. \n \n The respondents’ attorney appeared to state at hearing that the \nrespondent-carrier paid temporary total disability benefits until February 21, \n2022.   \nThe record indicates that Dr. Blankenship arranged for an MRI of the \nclaimant’s lumbar spine, which was taken on August 2, 2022 with the \nfollowing impression: \n1.  Status post L4-L5, L5-S1 anterior arthrodesis with posterior \ndecompression and unilateral pedicular fixation on the left.  \n\nGRUBBS - G506221  17\n  \n \n \nNo residual or retained stenosis is noted.  No gross \ncomplications of the orthopedic implants are noted.   \n2.  Moderate to severe facet arthropathy at L2-L3 and L3-L4 \nunchanged from preoperative MRI. \n3.  Mild kyphosis at L3-L4 with degenerative changes that are \nmild in nature.   \n \n Dr. Blankenship noted on September 12, 2022: \nThe patient is back in today.  He was last seen in February.  \nHe states his pain has gotten significantly worse.  He is \nhaving left-sided low back pain that radiates into the left hip \nand left buttock.  He has left foot numbness.  Flexion, \nreaching, lifting all significantly aggravate his pain.  He has not \ndone any conservative treatment since we last saw him.  He \nrates his pain at 100% toward the worst pain imaginable.... \nMr. Grubbs is back in the office today complaining of left-sided \nlower back pain.  He is also having some paresthesias in his \nleft foot and left leg.  His MRI looked good.  He has well-\ndecompressed neural exit foramina bilaterally with well-placed \nENZA implants that appear stable on his x-rays.  He does \nhave some adjacent segment facet disease at L3-L4 but this \nis much higher than [where] he is hurting.  His SI joint \nexamination did reveal 5 out of 5 positive findings although it \nwas not marked.... \nI have recommended we get him in to see Dr. David Cannon \nfor a left SI joint injection.  I told him that after his SI injection a \nweek later I want him to call Rhonda and tell her or send her a \nscreen shot of his flow sheet.  If he does not get any relief at \nall with his SI joint injections, I want him to have an LESI \nbefore he comes back in to see me.... \n \n Dr. Blankenship noted on September 21, 2022, “Please be advised \nthat the above patient has been a regular patient of this office and has been \ntreated at our office on Sep 12, 2022.  Patient will need to remain off work \nuntil after recommended injections and patient has followed up.\"   \n\nGRUBBS - G506221  18\n  \n \n \n Dr. Cannon performed an injection on or about November 3, 2022.  \nThe claimant testified that Dr. Cannon’s treatment “did me a lot of good.”   \n Dr. Blankenship gave the following impression on December 8, \n2022:   \nThe patient underwent a left SI joint injection.  By the end of \nthe first week he had gotten a 60% relief of his pain.  \nUnfortunately over the past month or little over a month, his \npain is now back to only a 30% relief.  We discussed the \npossibility of getting an LESI but I think this injection coupled \nwith Steve’s examination clinically means his pain generator is \nhis SI joint. \nRecommendations:  I told Roger we could get it injected \nagain but it is unlikely that is going to afford him any long-term \nbenefit.  I have gone over the risks and benefits of SI joint \narthrodesis and after a lengthy discussion he has elected to \ndo the following. \nHe wants to proceed on with left SI joint arthrodesis.  He \nunderstands the risks and benefits of SI joint arthrodesis and \nas soon as we get it authorized, we will get him on the \nschedule.   \n \n A pre-hearing order was filed on March 1, 2023.  According to the \npre-hearing order, the claimant contended, “The claimant contends that his \nauthorized treating physician is recommending additional treatment and has \nopined that as of September 12, 2022 the claimant remained unable to \nwork.  Dr. Blankenship has not released the claimant to return to work \npending the claimant’s receipt of recommended medical treatment.  The \nclaimant contends that the SI joint surgery recommended by Dr. \nBlankenship is reasonably necessary treatment in view of the fact that Dr. \nBlankenship and Dr. Cannon have both utilized conservative modalities that \n\nGRUBBS - G506221  19\n  \n \n \nhave not adequately addressed the claimant’s significant and ongoing \nproblems.  Claimant contends his attorney is entitled to an attorney’s fee on \nall indemnity benefits owed to claimant.”   \n The respondents contended, “Respondent #1 contends that claimant \nis not entitled to any additional benefits.”   \n The parties agreed to litigate the following issues: \n1.  Temporary total disability benefits from September 13, \n2022 through a date yet to be determined. \n2.  Additional medical treatment; including SI joint surgery \nrecommended by Dr. Blankenship. \n3.  Attorney fee.   \n \n The claimant followed up with Dr. Tomecek on May 4, 2023: \nHe presented to clinic today with his wife.  He has persistent \ngnawing pain that waxes and wanes in his left paraspinal \narea, left gluteal crest that runs laterally to his hip and the \nback of his legs.  He describes it as a deep ache and a bone \npain.  He also has numbness in his left foot from his ankle \ndown.... \nThis is a 69-year-old male who continues to complain of left \nparaspinal pain and left hip pain and pain in the back of his \nleft leg....It is my understanding again that Dr. Blankenship \n[has] ordered [an] MRI that was done on August 2, 2022 and \nagain he is recommending a left SI joint fusion to treat this \npatient’s atypical paraspinal pain and leg pain and numbness.  \nI have reviewed the MRI from August 2, 2022.  It basically \nshows that the patient has hardware in place on the left from \nL4 to the sacrum posteriorly and then anterior cages at L4-5 \nand L5-S1.  There is no new herniated disc there is no severe \nneural impingement or foraminal encroachment.  However the \nstatus of the patient’s fusion is impossible to assess on this \nMRI.  There is nothing on this MRI that would change my \nopinion that I made on January 17, 2022.  I am concerned the \npatient has pseudoarthrosis at L5-S1.  He has some \nloosening around the S1 screw and I do not see dense bone \n\nGRUBBS - G506221  20\n  \n \n \ngrowth posterior laterally at L5-S1 on the left and there is no \nbone this has been placed (sic) on the right.... \nI should mention as an aside that Mr. Grubbs was very \nfrustrated with his current condition and his current care.  He \nexpressed extreme doubt in my opinion.  He feels convinced \nthat his SI joint is a problem and it frequently pops so he \nSterets (sic) his SI joint.  I tried to explain to him that his back \ncould pop of (sic) his fusion is not solid and there are other \njoints in the area that could pop that are not his SI joint.  He \nappears to really want to have this operation of an SI joint \nfusion almost whether it helps him or not even though he is \nreally doing well under all the circumstances.  He was very \nargumentative and constantly bringing up Dr. Blankenship’s \nopinion and disagreeing with my diagnoses opinions and \ntreatment recommendations.  This significantly prolonged our \nvisit.  After I went over all the films with him as far as the \nmyelogram CAT scan again and clearly explained that his \njoint was already fused I believe he left the office with a little \nbit better understanding of why I do not agree with Dr. \nBlankenship’s opinion of an SI joint fusion.   \nAll my opinions are based on a reasonable degree of medical \ncertainty.   \n \n Dr. Blankenship stated in part on August 10, 2023, “I find Dr. \nTomecek’s second opinion would be insulting if it were not for the fact that I \nknow Dr. Tomecek.  My opinion as far as what Mr. Grubbs should consider \nis unchanged.  Mr. Grubb’s decision to proceed on with surgical intervention \nis unchanged.  I think it is probably time we get the guy treated.”   \nAfter a hearing, an administrative law judge filed an opinion on \nNovember 29, 2023.  The administrative law judge found that the claimant \nproved he was “entitled to additional medical treatment, including SI joint \nsurgery recommended by Dr. Blankenship.”  The administrative law judge \nfound that the claimant proved he was entitled to temporary total disability \n\nGRUBBS - G506221  21\n  \n \n \nbenefits “beginning September 13, 2022 and continuing through a date yet \nto be determined.”  The respondents appeal to the Full Commission. \nII.  ADJUDICATION \n A.  Medical Treatment \n The employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  What \nconstitutes reasonably necessary medical treatment is a question of fact for \nthe Commission.  Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 \nS.W.2d 70 (1984).   \n An administrative law judge found in the present matter, “2.  \nClaimant has met his burden of proving by a preponderance of the \nevidence that he is entitled to additional medical treatment, including SI joint \nsurgery recommended by Dr. Blankenship.”  The Full Commission does not \naffirm this finding.  It was stipulated that the claimant initially sustained a \ncompensable injury on March 4, 2013.  The claimant was diagnosed with \ncervical and thoracic strain following a motor vehicle accident.  Dr. \nCovington stated on June 9, 2015, “He is at maximum medical \n\nGRUBBS - G506221  22\n  \n \n \nimprovement from a neurosurgical standpoint.”  An administrative law judge \neventually awarded the claimant a 5% permanent anatomical impairment \nand 15% wage-loss disability as a result of the March 4, 2013 compensable \ninjury.   \n The claimant sustained another compensable injury on August 7, \n2015 as the result of a second motor vehicle accident.  A physician’s \nassessment in August 2015 was “Acute exacerbation of degenerative \narthritis of the cervical, thoracic and lumbar spines related to recent MVA.\"  \nDr. Cathey opined on August 31, 2015, “[T]he patient’s current diagnosis is \ndegenerative disc disease affecting the cervical, thoracic and lumbar spine.  \nHe probably did suffer a thoracic strain superimposed on these pre-existing \nconditions.  Unfortunately, he is not a candidate for spinal surgery or other \nneurosurgical intervention....I believe since he is almost a month out from \nthis event he is at maximal medical improvement and there is really no \nindication for additional treatment as it relates to this particular motor \nvehicle accident.”   \n Nevertheless, the claimant began treating with Dr. Blankenship in \nNovember 2016.  Dr. Blankenship recommended “aggressive” conservative \ntreatment and injections performed by Dr. Cannon.  An administrative law \njudge filed an opinion on February 28, 2018 and found that the claimant \nproved he was “entitled to additional medical treatment as recommended by \n\nGRUBBS - G506221  23\n  \n \n \nDr. Blankenship.”  The respondents appealed to the Full Commission, \nwhich filed an opinion on October 1, 2018.  As we have noted, the Full \nCommission found that “the claimant proved Dr. Blankenship’s current \ntreatment recommendations [emphasis supplied]” were reasonably \nnecessary in connection with the August 7, 2015 compensable injury.  The \nFull Commission found that the claimant proved he was entitled to \n“conservative medical treatment [emphasis supplied]” recommended by Dr. \nBlankenship.   \n Despite the Full Commission’s explicit award of only “conservative \nmedical treatment,” the respondents apparently authorized surgery \nperformed by Dr. Blankenship on April 9, 2020.  Post-surgical improvement \nis a proper consideration in determining whether surgery was reasonably \nnecessary.  Winslow v. D&B Mech. Contrs., 69 Ark. App. 285, 13 S.W.3d \n180 (2000).  In the present matter, the claimant has not consistently \nreported relief from surgery performed by Dr. Blankenship on April 9, 2020.  \nThe claimant has at times reported a decrease in his back pain but has also \nreported continued chronic back pain following surgery.  In any event, the \nrespondents accepted a 12% permanent anatomical impairment rating \nassessed by Dr. Blankenship on October 22, 2020.  The parties also \nstipulated that the claimant “reached maximum medical improvement on \nOctober 22, 2020.”   \n\nGRUBBS - G506221  24\n  \n \n \n The claimant continued to receive occasional injection therapy \nperformed by Dr. Cannon, and the claimant was provided physical therapy.  \nDr. Blankenship reported on September 2, 2021, “I have offered him left SI \njoint arthrodesis.”  Dr. Tomecek provided an Independent Medical \nExamination on December 1, 2021 and opined, “I would recommend more \nphysical therapy and at least one more sacroiliac joint injection before \ncommitting him to another major operation.”  Dr. Tomecek also noted, with \nsupport from the record, that the claimant “did not get significant \nimprovement with his lumbar fusion.  He has had persistent disabling low \nback pain and remains on Celebrex and Tylenol, which do not control his \npain enough for him to return to normal function.”  Dr. Tomecek reported on \nJanuary 17, 2022, “I do not agree with Dr. Blankenship’s recommendation.  \nI do not recommend a sacroiliac joint fusion on the left, because I believe \nthe patient already has an autofusion there.”   \n According to the record, the claimant informed Dr. Blankenship on \nFebruary 21, 2022, “He tells me that his SI joint pain is completely resolved.  \nHe stretched his leg and when he did, his SI joint popped and is no longer \nhurting....Since I saw Mr. Grubbs his SI joint pain is resolved.”   \n In workers’ compensation cases, the Commission functions as the \ntrier of fact.  Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 \n(1988).  The Commission is not required to believe the testimony of the \n\nGRUBBS - G506221  25\n  \n \n \nclaimant or any other witness but may accept and translate into findings of \nfact only those portions of the testimony it deems worthy of belief.  Farmers \nCo-op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).  The Commission \nalso has the authority to accept or reject medical opinion and the authority \nto determine its medical soundness and probative force.  Green Bay \nPackaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 692 (1999).  It is within \nthe Commission’s province to weigh all of the medical evidence and to \ndetermine what is most credible.  Minnesota Mining & Mfg. v. Baker, 337 \nArk. 94, 989 S.W.2d 151 (1999).   \n In the present matter, the Full Commission finds that Dr. Tomecek’s \nexpert opinion is credible and is entitled to more evidentiary weight than Dr. \nBlankenship’s opinion.  The claimant did not prove that a sacroiliac joint \nfusion proposed by Dr. Blankenship was reasonably necessary in \nconnection with the compensable injury sustained by the claimant on \nAugust 7, 2015.  The evidence demonstrates that the claimant has not \nexperienced lasting significant improvement in his back pain following \nsurgery performed by Dr. Blankenship on April 9, 2020.  The evidence of \nrecord supports Dr. Tomecek’s opinion that the claimant would benefit from \nconservative modalities such as physical therapy and injection treatment.  \nThis form of conservative medical effective treatment was originally \nawarded by the Full Commission on October 1, 2018.  The Full Commission \n\nGRUBBS - G506221  26\n  \n \n \nhas never found that surgery was reasonably necessary in accordance with \nArk. Code Ann. §11-9-508(a)(Repl. 2012).  We therefore find that the \nclaimant proved he was entitled to additional physical therapy and injection \ntreatment performed by Dr. Cannon.         \n B.  Temporary Disability \n Temporary total disability is that period within the healing period in \nwhich the employee suffers a total incapacity to earn wages.  Ark. State \nHwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  “Healing \nperiod” means “that period for healing of an injury resulting from an \naccident.”  Ark. Code Ann. §11-9-102(12)(Repl. 2012).  The healing period \ncontinues until the employee is as far restored as the permanent character \nof the injury will permit.  Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 \nS.W.2d 582 (1982).  The determination of when the healing period has \nended is a question of fact for the Commission.  Porter Seed Cleaning, Inc. \nv. Skinner, 1 Ark. App. 235, 615 S.W.2d 380 (1981). \n An administrative law judge found in the present matter, “3.  \nClaimant has met his burden of proving by a preponderance of the \nevidence that he is entitled to temporary total disability benefits beginning \nSeptember 13, 2022 and continuing through a date yet to be determined.”  \nThe Full Commission does not affirm this finding.  The claimant sustained a \ncompensable injury on August 7, 2015.  Dr. Loyd’s assessment was “Acute \n\nGRUBBS - G506221  27\n  \n \n \nexacerbation of degenerative arthritis of the cervical, thoracic and lumbar \nspines related to recent MVA.”  Dr. Cathey opined on August 31, 2015 that \nthe claimant had sustained a “strain” of his thoracic spine.  Dr. Cathey \nopined that the claimant had reached “maximal medical improvement.”  The \nFull Commission found on October 1, 2018 that the claimant “reached the \nend of the healing period for his August 7, 2015 compensable injury no later \nthan August 31, 2015.  The claimant did not prove he was entitled to \ntemporary total disability benefits beginning September 30, 2015 or any \ntime thereafter.”  There was no appeal of the Full Commission’s opinion \nfiled October 1, 2018, and the parties have stipulated, “The prior opinions in \nthis matter are final.”   \n Nevertheless, as we have noted, the respondents apparently \nauthorized a surgical procedure performed by Dr. Blankenship on April 9, \n2020.  The parties thereafter entered into a stipulation that the claimant \n“reached maximum medical improvement on October 22, 2020.”  The \nrespondents accepted and paid a 12% anatomical impairment rating \nassessed by Dr. Blankenship on October 22, 2020.  Permanent impairment \nis any functional or anatomical loss remaining after the healing period has \nbeen reached.  See Johnson v. Gen. Dynamics, 46 Ark. App. 188, 878 \nS.W.2d 411 (1994).  In an opinion filed June 10, 2021, an administrative law \njudge found that the claimant had sustained wage-loss disability in the \n\nGRUBBS - G506221  28\n  \n \n \namount of 30% as a result of the August 7, 2015 compensable injury.  \nAlthough the record indicates that the respondents paid temporary total \ndisability benefits until February 21, 2022, the evidence does not \ndemonstrate that the claimant re-entered a healing period at any time after \nOctober 22, 2020.  Dr. Blankenship’s off-work note dated September 21, \n2022 is not probative evidence demonstrating that the claimant re-entered a \nhealing period as a result of the compensable exacerbation or strain \nsustained by the claimant on August 7, 2015.  Temporary total disability \nbenefits cannot be awarded after a claimant’s healing period has ended.  \nMilligan v. West Tree Serv., 57 Ark. App. 14, 946 S.W.2d 697 (1997).         \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove the “SI joint arthrodesis” recommended by \nDr. Blankenship was reasonably necessary in accordance with Ark. Code \nAnn. §11-9-508(a)(Repl. 2012).  The claimant proved he was entitled to \nadditional physical therapy and injection treatment provided by Dr. Cannon.  \nThe Full Commission finds that the claimant did not prove he was entitled to \nan award of temporary total disability benefits.  The Full Commission’s \naward of physical therapy and injection treatment does not extend the \nclaimant’s healing period.  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. \nApp. 230, 184 S.W.3d 31 (2004).   \n \n\nGRUBBS - G506221  29\n  \n \n \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents. \n \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority opinion finding that the \nclaimant has proven by a preponderance of the credible evidence that \nadditional medical treatment is reasonable and necessary and that the \nclaimant is totally incapacitated from earning wages and remains in his \nhealing period entitling him to additional temporary total disability benefits.  \nThe claimant was assigned a 12% impairment rating to the body as a \nwhole after an April 9, 2020 surgery performed by Dr. James Blankenship. \nIn an opinion entered on June 10, 2021, the claimant was awarded \nadditional permanent partial disability benefits of 30% to the body as a \nwhole. \n The parties appeared for a third hearing on November 13, 2023, to \ndetermine whether the claimant is entitled to additional medical treatment \nincluding SI joint surgery as recommended by Dr. Blankenship and \nadditional temporary total disability benefits from September 13, 2022, \n\nGRUBBS - G506221  30\n  \n \n \nthrough a date to be determined.  The ALJ ruled that the claimant is entitled \nto the surgery as recommended by Dr. Blankenship and TTD benefits \nbeginning September 13, 2022, and continuing through a date yet to be \ndetermined.  \nArk. Code Ann. § 11-9-508(a) (Repl. 2012) requires an employer to \nprovide an employee with medical and surgical treatment \"as may be \nreasonably necessary in connection with the injury received by the \nemployee.\" The claimant has the burden of proving by a preponderance of \nthe evidence that the additional treatment is reasonable and necessary. \nNichols v. Omaha Sch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010). \nWhat constitutes reasonably necessary treatment is a question of fact for \nthe Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 S.W.3d \n445 (2023).  In assessing whether a given medical procedure is reasonably \nnecessary for treatment of the compensable injury, the Commission \nanalyzes both the proposed procedure and the condition it sought \nto remedy.  Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. 153, \n426 S.W.3d 539 (2013). \nIt is within the Commission's province to weigh all the medical \nevidence to determine what is most credible and to determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  In weighing the evidence, the \n\nGRUBBS - G506221  31\n  \n \n \nCommission may not arbitrarily disregard medical evidence or the testimony \nof any witness.  Id.  However, the Commission has the authority to accept \nor reject medical opinions.  Williams v. Ark Dept. of Community Corrections, \n2016 Ark. App. 427, 502 S.W. 3d 530 (2016).  Furthermore, it is the \nCommission's duty to use its experience and expertise in translating the \ntestimony of medical experts into findings of fact and to draw inferences \nwhen testimony is open to more than a single interpretation.  Id. \nHere, the ALJ favors Dr. Blankenship’s opinion, stating that “[w]hile \nDr. Tomecek has seen the claimant on three different occasions, Dr. \nBlankenship has seen the claimant on multiple occasions, and he \npreviously performed surgery on the claimant’s lumbar spine in 2020.”  \n(Op., P. 7).  However, this disregards the claimant’s history of subjective \ncomplaints arising long after he reported resolution of his preoperative pain \nas the result of his lumbar fusion.  \nAt an October 22, 2020 follow-up appointment with Dr. Blankenship \nafter his lumbar fusion, the claimant reported that six months post-surgery \nhe was “doing great with complete resolution of his preoperative pain.  He \nhas some low back pain, mostly midline.  He rates this only about 20% \ntoward the worst pain imaginable.”  (Cl. Ex. 1, P. 1).   \nSix months later, the claimant began complaining of pain ranging \nfrom a 3/10 to a 9/10 in his lower extremities and presented to Dr. Robert \n\nGRUBBS - G506221  32\n  \n \n \nCannon for treatment.  (Cl. Ex. 1, P. 6).  Dr. Cannon provided a left SI joint \ninjection.  (Cl. Ex. 1, P. 8).  \nIn May 2021, Dr. Blankenship reported that the claimant’s “greatest \npain complaint is mid back pain.”  (Cl. Ex. 1, P. 11).  Dr. Blankenship noted \nthat the thoracic MRI conducted in February 2020 revealed no acute \npathology and opined that although the claimant was positive for post \nlaminectomy syndrome, “[i]t is not uncommon when someone has had \nlumbar arthrodesis, or even before this, to have SI joint pain.  This does not \nneed to be treated.” (Cl. Ex. 1, P. 14).  \nWhen the claimant presented with “significantly worse” pain on \nSeptember 2, 2021, Dr. Blankenship immediately offered the claimant left \nSI joint arthrodesis without conducting any further treatment or diagnostic \nstudies.  (Cl. Ex. 1, Pp. 26-29).  However, the record reflects that the \nclaimant’s issues are primarily degenerative in nature.  \nThe respondents obtained an independent medical examination \n(IME) by Dr. Frank Tomecek on December 1, 2021.  (Resp. Ex. 1, Pp. 1-5). \nIn his report, Dr. Tomecek noted that an “MRI scan performed on \n04/02/2020 showed degenerative disks at L2-3, L3-4, L4-5, and L5-S1.  I \ndid not appreciate any significant disk herniations.  There was no significant \nlumbar spondylosis and stenosis, and no cauda equina compression.” \n(Resp. Ex. 1, P. 3).  When asked whether the claimant’s present diagnosis \n\nGRUBBS - G506221  33\n  \n \n \ncan be attributed to his work-related injury, Dr. Tomecek responded that \n“we do not have a definitive diagnosis,” opining that:  \nThe patient has only had one left-sided \nsacroiliac joint injection.  He has undergone a \nL4 to the sacrum anterior and posterior \ninstrumented fusion and has only had x-rays \ndone post-operatively.  He has chronic low \nback pain in addition to thoracic pain.  He has \nhad a thoracic epidural steroid injection that \nhelped him quite a bit as well.  I feel it is a \nmedical necessity that further diagnostic \ntesting be performed.  I would recommend a \nthoracic and lumbar myelogram CT scan with \nflexion and extension views.  The diagnosis for \nchronic back pain after a lumbar fusion can be \nvery difficult to determine.  Before making a \nfinal diagnosis, I feel that careful diagnostic \ntesting of the fusion is required. (Resp. Ex. 1, \nP. 4). \n \nDr. Tomecek believes it is necessary to undergo further \ntesting, as: \nMalposition of the hardware and \npseudoarthrosis can also cause symptoms \nsimilar to this patient’s symptoms.  In addition, \nit is not uncommon at all for a patient to have \nadjacent level disease and herniated disks at \nlevels next to the fusion.  This patient had \ndegenerative disks on his pre-op MRI at \nbasically every level of his lumbar spine.  He \ncould have an adjacent level herniated disk, \nand this would not be diagnosed on a plain x-\nray, which is all that he has had after his \noperation.  Id. \n \nMore importantly, upon review of the claimant’s records, Dr. \nTomecek found that the claimant “did not get significant improvement with \nthe lumbar fusion,” considering his persistent pain and need for medication. \n\nGRUBBS - G506221  34\n  \n \n \nThis, he opines, warrants further diagnostic testing as well.  (Resp. Ex. 1, P. \n5). \nDr. Tomecek’s opinion is clear that performing additional surgery on \nthe claimant without further diagnostic testing would be premature.  The \nclaimant’s history of extensive pre-existing degenerative disc disease and \nfailure to respond to his previous surgery indicates that there are underlying \nissues that have not been addressed to date.  Further, Dr. Tomecek’s \nreview of the claimant’s medical records bears greater weight than Dr. \nBlankenship’s, as Dr. Tomecek’s findings highlight Dr. Blankenship’s \nongoing failure to properly investigate or treat the underlying cause of the \nclaimant’s concerns prior to recommending an invasive surgery, which itself \nwarrants disregarding Dr. Blankenship’s findings. \nDr. Tomecek is correct: there have been no appropriate diagnostic \ntests that would lead the Commission to the conclusion that the claimant \nshould be entitled to additional surgery without more information.  For this \nreason, I believe the ALJ’s findings should be reversed. \nOur Rules require that to prevail on a request for additional \ntemporary total disability benefits, the claimant must prove by a \npreponderance of the evidence that he is totally incapacitated from earning \nwages and remains in his healing period.  Hickman v. Kellogg, Brown & \nRoot, 372 Ark. 501, 277 S.W.3d 591 (2008).  The healing period ends when \n\nGRUBBS - G506221  35\n  \n \n \nthe employee is as far restored as the permanent nature of his injury will \npermit, and if the underlying condition causing the disability has become \nstable, and if nothing in the way of treatment will improve that condition, the \nhealing period has ended.  Id.  The determination of when the healing \nperiod has ended is a factual determination for the Commission.  Id. \nIn his opinion, the ALJ found that the claimant remains within his \nhealing period based on Dr. Blankenship’s recommendation for surgery and \nDr. Tomecek’s opinion that the claimant would need additional medical \ntreatment.  (Op., P. 8).  However, disregarding Dr. Blankenship’s opinion for \nthe reasons set forth above, there is no indication from Dr. Tomecek that \nthe claimant is wholly incapacitated from earning wages.  Even if the \nclaimant requires additional treatment, there is nothing in Dr. Tomecek’s \nopinion that states that the claimant is unable to work at this juncture.  \nAccordingly, for the reasons set forth above, I must dissent. \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G506221 ROGER GRUBBS, EMPLOYEE CLAIMANT SOUTHERN PERSONNEL MANAGEMENT, INC./ CABINET SHOP, INC., EMPLOYER RESPONDENT NO. 1 AMTRUST NORTH AMERICA, INSURANCE CARRIER/TPA DEATH & PERMANENT TOTAL DISABILITY TRUST FUND","fetched_at":"2026-05-19T22:29:45.503Z","links":{"html":"/opinions/full_commission-G506221-2024-05-21","pdf":"https://labor.arkansas.gov/wp-content/uploads/Grubbs_Roger_G506221_20240521.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}